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HomeMy WebLinkAboutR-1994-117 Yakima Goodwill Industries SiteRESOLUTION NO. R-94 - 117 A RESOLUTION authorizing and directing the City Manager and City Attorney of the City of Yakima to execute and implement a Prospective Purchaser Consent Decree Re: Yakima Goodwill Industries Site with the Washington State Department of Ecology. WHEREAS, the Washington State Legislature has appropriated $3,000,000.00 in State funds for the construction of a vital criminal justice facility known as the Yakima Police Station/Legal Center, and the City has made available matching funds for this project; and, WHEREAS, on November 16, 1993, the City Council decided that the Yakima Police Station/Legal Center should be constructed on the Wikstrom Block bordered by Walnut Street, South Third Street, Spruce Street, and South Second Street; and, WHEREAS, on December 14, 1993, the City Council by resolution authorized and directed the City Manager to acquire properties owned by Goodwill Industries, the Washington Military Department, and Wikstrom Family in order to enable construction of the Yakima Police Station/Legal Center, and, WHEREAS, on March 22, 1994, the City Council authorized and directed the City Manager to conduct environmental audits of the properties located within the Wikstrom Block in compliance with Federal and State laws; and WHEREAS, the results of the environmental audit of the Goodwill Industries site indicated that some Perchloroethene (PCE) contamination was present in the soils and ground water at levels in excess of the concentrations permitted under State law, thereby necessitating some type of remedial action; and, WHEREAS, pursuant to Council direction to reduce the City's risk of Potential Liable Party (PLP) liability in the Yakima Railroad Area, the Police Chief and City Attorney have negotiated a Prospective Purchaser Consent Decree with the Washington State Department of Ecology, and, WHEREAS, the Prospective Purchaser Consent Decree provides that the City will clean up the PCE contamination at the Yakima Goodwill Industries site as part of the Police Station construction process in exchange for a promise by the Department of Ecology not to sue the City or otherwise designate the City as a PLP in the Yakima Railroad Area; and, WHEREAS, the City Council finds and determines that the execution and implementation of this Prospective Purchaser Consent Decree is in the best interest of the City of Yakima because it will allow construction of the Police (dlw)res/Yakima Goodwill Industries Page 1 Station/Legal Center to continue on schedule, thereby avoiding lengthy project delays and significantly increased construction costs; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The Yakima City Manager and City Attorney are hereby authorized and directed to execute the "Prospective Purchaser Consent Decree Re: Yakima Goodwill Industries Site" with the Washington State Department: of Ecology :in substantially the same form as attached hereto. The City Manager and City Attorney are further authorized and directed to take all necessary and prudent actions to implement the attached Consent Decree as contemplated therein, including but not limited to, obtaining professional environmental engineering and technical services to conduct the investigative and remedial actions set forth in the Consent Decree in a total dollar amount not to exceed the existing budget authority for land acquisition, subject to the review and approvall of all contract documents by the City Attorney. ADOPTED BY THE CITY COUNCIL this lath day of sPpt-amber , 1994. ATTEST: Mayor t(; (-- CityClerk (d1w)res/Yalcirma Goodwill Industries Page 2 3 4 5 6 7 8 9 10 11 12 SUPERIOR COURT OF WASHINGTON IN AND FOR YAKIMA COUNTY STATE OF WASHINGTON DEPARTMENT OF) No. ECOLOGY, ) ) Plaintiff, ) PROSPECTIVE PURCHASER ) CONSENT DECREE RE: YAKIMA v. ) GOODWILL INDUSTRIES SITE ) CITY OF YAKIMA, a Washington municipal ) corporation, )) Defendant. ) 14 TABLE OF CONTENTS 15 ( Page 16 INTRODUCTION 2 I. AUTHORITY, JURISDICTION AND VENUE 4 17 II. DEFINITIONS 6 III. DESCRIPTION OF SITE AND CONTAMINATION PROBLEMS 6 18 I IV. DESCRIPTION OF PROPOSED PROJECT 8 V. WORK TO BE PERFORMED 9 19 ! VI. DESIGNATED PROJECT COORDINATORS 12 VII. PERFORMANCE 13 20 j VIII. CERTIFICATION OF THE CITY OF YAKIMA 13 IX. CERTIFICATION OF THE CITY OF YAKIMA AND SUCCESSORS AND 21 ASSIGNS 1313 X X. CONVEYANCE OF PROPERTY 22 XI. AMENDMENT OF CONSENT DECREE; ADDING NEW PARTIES TO 14 DECREE 14 23 � XII. DISPUTE RESOLUTION 16 XIII. CONTRIBUTION PROTECTION 17ER MTCA; REOPENERS 24 XIV. COVENANT NOT TO SUE XV. THE CITY OF YAKIMA RESERVATION OF RIGHTS 21 25 , XVI. DISCLAIMER 2121 XVII. RETENTION OF RECORDS 21 6 1 XVIII. SITE ACCESS lap/goodwill/consent decree draft 3 8/1/94 9:40 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA GOODWILL INDUSTRIES SITE - 1 PRESTON GATES & EiuS 5000 Colamsia Calmer 701 flits Avenge Seattle, Wastinpoo 98104 Telepsoae: (206) 623-7380 OFFICE OF THE CITY ATTORNEY art OF YAKIMA 424 East Yakima Avenge, Ste. 100 Yakima. wastangtoo 98901 Teiepbaoe: (509) 5734030 1 XIX. OTHER APPLICABLE LAWS XX. DURATION OF DECREE AND RETENTION CO JURISDICTION 2 XXI. PUBLIC NOTICE AND WITHDRAWAL23 23 XXII. REMEDIAL ACTION COSTS 24 3 XXIII. EFFECTIVE DATE 4 INTRODUCTION 5 This prospective purchaser consent decree ("Decree") is made and entered into by and. 6 between the Washington State Department of Ecology ("Ecology") and the City of Yakima, a first 7 class, charter city. Successors in Interest and Assigns may become parties to this Decree as provided 8 ; herein, in Section XI. 9 1. WHEREAS, the purpose of this Decree is to performs an Interum Action for 10 source control and complete soil remediation of PCE, TPH, and other known ha7..rdous substances 11 which have been released at the Yakima Goodwill Industries site (the "Property"), to promote the 12 public interest by expediting cleanup activities at the Property and by facilitating construction of a 13 : police station/legal center in Yakima, Washington, to provide for the preparation of a Phase I Rem 14 ( Investigation (RI) at the conclusion of the Interim Action, and to resolve the possible liability of the 15 I City of Yakima for known hazardous substances which have been released at the property„ The 16 Property is located at 222 South Third Street and is bounded by South Third Street on the east, a 17 military armory on the north, East Spruce; Street on the south and an alley on the west. 18 2. WHEREAS, the City of Yakima has undertaken substantial steps to acquire the 19 i Property by purchase or condemnation in exercise of its powers of eminent domain under ch. 20 35.22.280(6) RCW. The City of Yakima has entered into a Purchase and Sale Agreement, dated 21 February 11, 1994, with Goodwill Industries Rehabilitation Center, Inc., a Washington charitable 22 non-profit corporation, the current owner of the Property ("Goodwill"), to purchase the Property. The 23 City of Yakima passed a condemnation ordinance, dated August 9, 1994, authorizing the acquisition of 24 ! the Property by condemnation, if necessary, in the event that current negotiations to purchase the 25 Property prove unfruitful. 26 3. WHEREAS, the City of Yakima proposes to demollish the existing; .structu` lop/goodwill/consent decree draft 3 8!1/94 123 PM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA ,'I,,,f-vrvutraT T TXTTNTT('1 DTT~C CTTF - PRESTON GATES & Ell$ 5000 Colombia Cama 701 ?Alb Avenge Stank. Waidingwo 9$104 Teiepbaoe: (206) 62475$0 OFFICE (Try ITY E CWY OF YAKIMA 424 East Yakima Ammo. Se. 100 Yakima. WasEim$too 91901 Tekpbooe: (504) 575-0 3!. 4 5' 6 7, 8! 9 10 11 12 3 14 15 16 17 18 19 20 21 22 23 24 25 !6 the Property and construct a police station/legal center (the "Center") on the Property and several adjacent parcels currently owned or leased by the City of Yakima. 4. WHEREAS, the Center is needed to address overcrowding of existing Police Department offices and prisoner holding facilities, to house the City of Yakima's entire City Attorney's Office, and provide needed space for a 24-hour 911 emergency communications center for the City of Yakima and other Yakima Valley jurisdictions. 5. WHEREAS, the State of Washington has a substantial interest in this criminal justice facility and has contributed both state-owned property (military armory) and $3,000,000 in capital construction funds appropriated by the Washington State Legislature. 6. WHEREAS, the Center is an essential public facility under the Growth Management Act, RCW 36.70A.200(1), the Property is a key parcel of land needed to realize completion of the Center, and no other reasonable alternative for siting the Center exists. 7. WHEREAS, in the absence of this Decree, the City of Yakima would, as a consequence of acquiring the Property, incur potential liability under RCW 70.105D.040(1)(a) of the Model Toxics Control Act ("MTCA") for performing remedial actions or for paying remedial costs incurred by Ecology, resulting from the release or threatened release of hazardous substances at the Property. 8. WHEREAS, the City of Yakima has performed an Environmental Site Assessment which revealed that groundwater at the Property exceeds MTCA Method A and Method B cleanup levels for certain hazardous substances. In addition, soil samples taken at the Property exceed MTCA Method A cleanup levels for certain hazardous substances, and sump sediment samples taken at the Property exceed MTCA Method A and B cleanup levels for certain hazardous substances. The sump sediments have been collected and containerized by Goodwill for proper disposal prior to transfer of title to the Property to the City of Yakima. 9. WHEREAS, this Decree promotes the public interest by expediting hazardous substance remediation at the Property and by facilitating construction of needed public law lap/goodwill/consent decree draft 3 V1194 9:19 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA GOODWILL INDUSTRIES SITE - 3 PRESTON GAZES & ELLIS OFFICE CITY THE CITY YMA4 TORNEY 50on Cblt®6ia Crew 701 Ms Areae 424 Ea" Yams Mame. Ste. 100 Sen, Wubinpoc 98104 Yakima. Wigan= 98901 Tekpba= (206) 6217580 Tekpbooe: (309) 575-6030 2 3 4 5 6 7 8 9i 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 enforcement, legal, and safety facilities. 110. WHEREAS, the City of Yakima has offered to further certain Ecology goals as provided in this Decree, in exchange for a covenant not to sue and protection from contribution under MTCA. Among other things, the City of Yakima will, as part of any redevelopment activities undertaken by the City of Yakirna on the Property, conduct necessary soil remediation to bring the Property into compliance with MTCA Method A cleanup standards for tetrachloroethene (also referred to as perchloroethene - "PCE") and total petroleum hydrocarbons ("TPH"). The City of Yakima will also, according to Ecology's requirements, remediate other hazardous substances which, during the process of remediating PCE and TPH contaminated soils, are encountered in concentrations requiring remedial action under MTCA standards. The City of Yakima also agrees to perform groundwater monitoring according to the terms of this Decree. 11. WHEREAS, the City of Yakima's plans for the Property are not likely to aggravate or contribute to the Present Contamination on the Property, interfere with remedial actio that may be needed on the Property, or increase human health risks to persons at or in the vicinity of the Property. 12. WHEREAS, this Decree will provide for the first source removal of l?CE contaminated soil in the Yakima Railroad Area, and generally an environmentally beneficial. ]project and is within the public interest. 13. WHEREAS, the Court is fully advised of the reasons for entry of this Decree, and good cause having been shown: IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS: 1. AL T TT30RITV MIS ITCTTnN AND VENCs 14. This Court has authority, under Washington's Uniform Declaratory Judgment Act (RCW 7.24 et.) to resolve the liability of the parties to this Decree. 15. This Court has jurisdiction over the subject matter and over the parties pursuant to MTCA, ch. 70.105D RCW. Venue is proper in Yakima County pursuant to RCW lap/goodwill/consent decree draft 3 8/1/94 9:19 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA Cr,nnnwu x rND USTREES SITE - 4 PRESTON GATES & ELLS 5000 Catembia Cerner 701 Rttb Avenge Seattle. Wuticpoo 98104 Teiepboo: (206) 6237580 OFFICE OETHE CITY ATTORNEY QTY OF YAKIMA 424 East Yakima A,egx. Ste. 100 Yafamm, Washington 98701 Telepboce: (509) 575-6030 1 i 70.105D.050(5)(b). 2i 16. Authority is conferred upon the Washington State Attorney General by RCW 3 70.105D.040(4)(a) to agree to a settlement with any potentially liable person ("PLP") if, after public 4 notice and hearing, Ecology finds the proposed settlement would lead to a more expeditious cleanup of 5 i hazardous substances in compliance with cleanup standards under RCW 70.105D.030(2)(d). RCW 6 70.105D.040(4)(b) requires that such a settlement be entered as a consent decree issued by a court of 7 competent jurisdiction. 8 17. Authority is also conferred upon the Washington State Attorney General by 9 RCW 70.105D.040(5) to settle with non-PLPs who propose to purchase, redevelop, or reuse a 10 � property where hazardous substances have or may have been released so long as the settlement 11 provides a substantial public benefit, yields substantial new resources to facilitate and expedite 12 l remedial action, and so long as the redevelopment or reuse is not laxly to contribute to the existing 13 I release or threatened release, interfere with remedial actions that may be needed at the site, or increase 14 health risks to persons at or in the vicinity of the site. 15 18. Ecology has determined that hazardous substances have been released at the 16 Property. The City of Yakima has certified that it is not now a PLP for the Property. Were the City of 17 Yakima to acquire an interest in the Property, however, without this Prospective Purchaser Consent 18 Decree, it could be a PLP as an owner under RCW 70.105D.040(1)(a). 19 19. This Decree is entered prior to the City of Yakima's acquisition of the Property 20 to resolve its possible liability for known hazardous substances which have been released at the 21 ' Property and to facilitate a more comprehensive and expeditious remedial action at the Property than 22 otherwise would occur. 23 I 20. By entering into this Decree, the City of Yakima agrees not to challenge 24 Ecology's jurisdiction in any proceeding to enforce this Decree. The City of Yakima consents to the 25 I issuance of this Decree and has agreed to perform an interim remedial action and monitoring as 26 specified in this Decree. lap/goodwill/consent decree draft 3 g/1/94 9:19 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA nnr wn T TATTITTCTRTFC cri'F - 5 PRESTON GATES & ELLS 5000 C lambis Ceara 701 RM Mew Sea4Ue, %VUHngtoo 9ft0s Tekepboae: (206) 6217530 OFFICE OF THE CITY ATTORNEY ary OF YAKIMA 424 Eau Yakima Avenue. Sic. 100 Yakima. Wsabingtoo U901 Tekepbooe: (509) 575-6030 TI. DEFINITIONS 1 2 21. Unless otherwise expressly provided herein, terms used in this Decree that are 3 defined in MTCA or in regulations promulgated under MTCA shall have the meaning assigned to them 4 in MTCA or in such regulations.. Whenever terms listed below are used in this Decree or in the 5 attachments hereto, the following definitions shall apply: 6 "Decree" shall mean this Decree and all attachments hereto. In the event of conflict 7'' between this Decree and any attachment, this Decree shall control; 8 "Paragraph" shall mean a portion of this Decree identified by an Arabic numeral; 9 "PCE" shall mean the substance known by a variety of names, including, but not 10 limited to, tetrachloroethene, perchloroethylene, and specifically identified by Chemical Abstract 11 System Number 127-18-4; 12 "The Property" shall mean the Yakima Goodwill Industries site bounded by South 13 f Third Street on the east, East Spruce Street on the south, and an alley on the west, depicted on 14 Attachment B and legally described in Attachment A, attached hereto and incorporated by reference; 15 "Section" shall mean a portion of this Decree identified. by a Roman numeral and 16 including one or more Paragraphs. 17I"Successors in Interest and Assigns" shall mean any party who acquires an interest in 18 the Property through purchase, lease, transfer, assignment, or otherwise. 19 In. DESCRIPTION OF S AND CONTA ATTON FPROBLEM 20 22. The Property is located at 222 South Third Street in Yakima, Washington and. 21 occupies the site bounded by South Third Street on the east, a military armory on the north, East 22 Spruce Street on the south, and an alley on the west.. Hazardous substances, including PCE, have 23 historically been used at the Property. 24 23. A number of businesses, including automobile dealerships and dry-cleaning 25 facilities, conducted business on the Property between 1942 and the present. Handling and disposal 26 practices have not been established. Several drains and a sump are located within the Yakima lap/goodwill/consent decree draft 3 8/1)94 9:19 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAK,IMA nnf�Tl\S STT T TATTITTCTRTFC CTTF - 6 PRESTON GATES i EMS S000 Columbia Caner 701 Mb Avenue Snob. Wuhiogtao 98104 Telepboae: (206) 623-7580 OFfX arrYYOFYAIQMA ATTORNEY 424 East Yalta Amu. Ste. 100 Yatma, Washington 98901 Te)rpDone: (509) 575-6030 Goodwill Industries building and may have acted as conduits to the subsurface. 24. A retail store is currently located on the Property, and a grated sump is located 3 in the retail store's production area. This sump appears to have been located beneath a vehicle wash 4 rack when the facility was used as automobile dealership/body shop. 5 25. The City of Yakima conducted an Environmental Site Assessment, completed in 6 July 2994, which revealed soils on the Property with elevated concentrations of TPH and exceeding 7 MTCA Method A cleanup levels for PCE. In addition, other substances have been detected below 8 MTCA action levels as described in Attachment C which is incorporated by reference herein. 9 26. The City of Yakima's Environmental Site Assessment revealed sump sediments 10 on the Property exceeding MTCA Method A cleanup levels for TPH and MTCA Method B cleanup 11 levels for vinyl chloride. These sump sediments have been collected and containerized by Goodwill 12 for proper disposal prior to transfer of title to the Property to the City of Yakima. 327. The City of Yakima's Environmental Site Assessment revealed groundwater on 4 I the Property exceeding MTCA Method A cleanup levels for PCE and MTCA Method B cleanup levels 1 , 15 for chloroform. 16 28. Hazardous substances slightly in excess of MTCA cleanup levels for PCE and 17 j chloroform have been found in groundwater at the adjacent upgraclient parcel which was formerly 18 owned by Wikstrom Motors (the "Wikstrom Parcel"). The City of Yakima acquired the Wikstrom Parcel in 1994, in anticipation of construction of the Center. In January 1989, Ecology conducted a 19 "EPA"). 20 site inspection at the Wikstrom Parcel for the United States Environmental Protection Agency 21 ` At the time of the inspection, no evidence of past on-site release or disposal of hazardous substances 22 was identified, and EPA deferred additional characterization to Ecology. Subsequently, prior to its 23 acquisition by the City of Yakima, petroleum contaminated soils were removed from the Wikstrom 24 Parcel. In a memorandum dated October 20,1993, attached hereto and incorporated herein as i Attachment D. Ecology stated that the removal of petroleum contaminated soils from the Wikstrom Site 25 , 26 was successful and concluded the Wikstrom Parcel was no longer a source of contamination. Ecology lap/goodwill/consent dans draft 3 $11/94 9:19 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA GOODWILL INDUSTRIES SITE - 7 RESTON GATS it t111s 5000 Catambia Omer 701 Rflb Mom seask. Wasbittpoa 91104 Tekgpbooe: (206) 623.7580 OFFICE MY CITY AKI ATTORNEY 424 East Yakima Avenge. Ste. 100 Yakima. Wubm6toa 99901 Tekepbaoe: (509) 5716030 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 also concluded that the presence of tetrachloroethene and chloroform in the groundwater at the Wikstrom Site does not require further remedial action. 29. Ecology has made a determination of "No Further Action" for the Wikstrom Parcel and noted that "[a] past investigation during the course of a site hazard assessment being performed by Ecology found no evidence of a release of tetrachloroethene [PCE], in addition no tetrachloroethene (PCE] was detected in the soil samples taken from the Wikstrom Site during the independent remedial actions." Ecology Memorandum, October 20, 1993 (Attachment D). This conclusion was corroborated by the results of samples from monitoring wells installed by the City of Yakima which found PCE in the groundwater on the downgradient edges of the Wikstrom Parcel, which is upgradient to the Property, at non -detect concentrations. 30. The Property is located within the Yakima Railroad Area. The Yakima Railroad Area is a mile -wide corridor straddling First Street and extending south from Lincoln Avenue on the north to Ahtanum Road in Union Gap. Groundwater within this area has been contaminated by PC Pr— DEKEIEFION OF PROPOSED PROJECT 31. The City of Yakima proposes to acquire the Property through purchase or condemnation, as necessary, through its powers of eminent domain, pursuant to RCW 36.70A.200(1). The City of Yakima proposes to demolish the existing structure and to construct a police station/legal center, a two-story free-standing facility, on both the Property and on adjacent property to which the City of Yakima already holds title. Funds for the project will be provided by a $3,000,000 grant appropriation from the State Legislature, revenues from additional utilities taxes, and revenue from the sale of limited tax general obligation bonds. In addition, the State of Washington Military Department has granted the City of Yakima a 99 -year ground lease for $1.00 for a parcel adjacent to the Property , which parcel is necessary to construct the Center. 32. The Center will house the City of Yakima Police Department, all administrative, operational, investigative, training and support service functions associated with the City of Yakima Police Department, and the Offices of the City Attorney. lap/goodwill/consent dixtee draft 3 8/1/94 9:19 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA GOODWILL INDUSTRIES S[1 b " 8 PRESTON GATES t ELLIS 5000 Calambia Cramer 701 FM Avatar Sauk. Wasbiagtoo 98104 Tekpbooe: (206) 6237580 OFFICX OF THE (TTY ATTORNEY PTY OF YAKIMA 424 Eat 'fah= *wove. Ste. 100 Yaivaoi. wasicai Teiepbooe: (509) 575.6030 3 4 5 6 7 8 9 10 11 12 33. The Center is sized to house and designed to support area -wide -911 emergency communication services for the City of Yakima and other upper Yakima Valley jurisdictions. 34. The Center will house a prisoner holding facility for up to 80 criminal defendants. 14 15 16 17 18 19 20 21 22 23 24 25 ,6 35. Development of the Center will further urban renewal/revitalization in this area of downtown Yakima, in particular, by the removal of several public safety hazards, including structures which have been abandoned, bumed-out and condemned. 36. Ecology has determined that remediation of contaminated soils at the Property and monitoring of groundwater at the Property is required. The primary objective of any soil remediation undertaken on the Property will be to stop any further release of PCE into groundwater. A secondary and related objective will be to reduce PCE and TPH levels in the soil above the groundwater table to conform to MTCA cleanup standards. Other hazardous substances which are encountered during the process of remediating PCE and TPH contaminated soils in concentrations requiring remedial action under MTCA standards, will be remediated according to Ecology's requirements. Such soil remediation and groundwater monitoring will be conducted as part of the City of Yakima's redevelopment of the Property according to Section V of this Decree and Attachment E. A third and related objective will be to prepare a Phase I Remedial Investigation (RI) at the conclusion of soil remediation. 37. The City of Yakima's remediation of contaminated soil, installation of groundwater monitoring wells, and monitoring of groundwater will lead to a more expeditious remediation of hazardous substances at the Property and will promote protection of the public health and the environment. V. WORK TO BE PERFORMED 38. This Decree contains a program designed to protect public health, welfare, and the environment from the known release of hazardous substances or contaminants at, on, or from the Property. The requirements of such program are outlined in detail in the Interim Action Work Plan in tip/goodwill/consent decree draft 3 g11194 9:19 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA GOODWILL INDUSTRIES SITE - 9 PRESTON GATES & EMS 5000 Colombia Censer 701 Alta Annie Sank. Wasting= 96104 Tekpbcm: (206) 623.7560 OFFICE OF THE CITY AVORNEY CITY OF A to 434 East Yakima Meow. Sm.1100 Washing=Yakima. Waaaini Telepbaoe: (509) 575-6030 1 Attachment E, attached hereto and incorporated herein. 2 39. The City of Yakima or its Successors in Interest and Assigns will perform an 3 Interim Action consisting of soil sampling and remediation as described in Attachment E. Soil 4 remediationas will be commenced and comp letedof any construction excavation and grading part 5 undertaken for redevelopment of the Property. Soil known to be contaminated with PCE and TPH in 6 areas of the Property being excavated and graded for redevelopment of the Property will be removed 7 for treatment or disposal. The City of Yakima will also, according to Ecology's requirements, 8 remediate other hazardous substances which are encountered during the process of remediating PCE 9 i' and TPH contaminated soils in concentrations requiring remedial action under MTCA standards. Such 10 removal of contaminated soil will continue until analytical results of excavation sidewall and bottom i 11 i samples are below cleanup levels, or until groundwater contact (approximately fourteen (14) feet in 12 '+ May, 1994) or the adjacent streets (South Third Street and East Spruce Street) are encountered. The 13 j cleanup criteria used will be MTCA Method A cleanup levels for PCE and TPH in soil. Treatment 14 ! disposal of the contaminated soil will be performed in accordance with MTCA and other applicable 15 I regulations and as described in Attachment E. 16 40. The City of Yakima or its Successors in Interest and Assigns will install two (2) 17 groundwater monitoring wells, as depicted in Figure 2 of Attachment E, during construction of the 18 Center, in addition to the two (2) groundwater monitoring wells already installed as part of the 19 Environmental Site Assessment for the Property. Collectively, the wells are positioned to provide a re presentative sampling of groundwater conditions surrounding the Property,em ss on the with P�i 20 p 21 ' downgradient boundaries. The City of Yakima or its Successors in Interest and Assigns will sample 22 and analyze groundwater for the presence of PCE in accordance with Attachment E. Groundwater 23 sampling shall commence upon installation of the groundwater monitoring wells. Results will be 24 submitted to the Ecology designated project coordinator within thirty (30) days following sampling. the deli ted Ecology project 25 An interim groundwater monitoring report will be submitted to gna 26 coordinator at the end of one year. At that time, Ecology will evaluate sample results. In the eve,: lap/goodwill/consent decree draft 3 8/1/94 9:19 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA GOODWILL INDUSTRIES SITE - 10 pRES ON GATES & ALIS 5000 Coledbia censer 701 Fills Mahe Seaak, WaUEingtoo 98104 Telephone: (205) 623.7580 OFFICE 1F THE CITY ATTORNEY 3TY OF YAKIMA 424 East Yakima Avenue, Su. 100 Yin_ Wathingtbe 118901 Telephone: (509) 575.6030 there is a significant increase in PCE levels, quarterly sampling will be continued for another year. A significant increase in contaminant levels shall be deemed to have occurred in the event there is an 3 exceedance of a ninety-five percent (95%) upper confidence interval for specified contaminants derived 4 from methods specified in the Department of Ecology Taxies Cleanup Program Statistical Guidance for 5 Site Managers, dated August 1992. 6 41. Provided that there is no significant increase in PCE levels (as defined above), 7 sampling and analysis will continue for another year on a semi-annual basis, with results reported to 8 the designated Ecology project coordinator within thirty (30) days following sampling, with a final 9 report on the two years of groundwater monitoring submitted within ninety (90) days of conclusion of 10 sampling. 11 42. The City of Yakima and its Successors in Interest and Assigns agree to exercise 12 due care in the demolition, removal or development of any structure or improvement, including, but 3 not limited to, USTs, buildings, paving, gravel surfacing, tanks, piping, utilities, monitoring wells, or 14 other surface improvements. 15 43. In the event the City of Yakima or its Successors in Interest and Assigns 16discover any contamination not known, documented or suspected to exist on the Property as described 17 i in Section III, the City of Yakima and Successors in Interest and Assigns agree to a) notify Ecology 18 of exposure of contaminated or potentially contaminated fill soils or of releases or threatened releases 19 of hazardous substances within forty-eight (48) hours of discovery, unless or except when immediate 20 response is required to prevent an imminent threat to human health or the environment in which case 21 the City of Yaldma and Successors in Interest and Assigns will notify Ecology immediately; and, 22 I b) notify Ecology of any plans to characterize the fill materials encountered at the site with respect to 23 ; hazardous substance and/or dangerous wastes characteristics, prior to initiating such characterization. 24 A response plan, which may include a sampling and analysis plan, will be developed at the time of 25 discovery of such contamination by the City of Yakima or its Successors in Interest and Assigns, and 26 submitted to Ecology for Ecology's approval. Nothing herein precludes Ecology from taking action or lap/$oodwill/conteat decree draft 3 $/1194 9:19 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA GOODWILL INDUSTRIES SITE - 11 PRESTON GATES & E LIS 3000 Columbia Center 701 fifth Avenue Stank, Washington 96104 Tekpboae: (206) 6237380 OFFICE TTORNEY Cr Y YATHE CITYKIMA 134 East Yak111311 Avenue. ate. 100 TeWashington (309)5-6030 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 requiring action to address such releases consistent with the terms and conditions of this Decree. Nothing herein exempts the City of Yakima or Successors in Interest and Assigns from notification requirements under all applicable federal and state laws and regulations, as provided in Section XVIX: of this Decree. VI. DESIGN -TED PROJECT COORDINATORS 44. The project coordinator for Ecology is: Rick Roeder Site Manager Washington Department of Ecology Central Regional Office 106 South Sixth Avenue Yakima, Washington 98902 The project coordinators for the City of Yakima are: Raymond L. Paolella, City Attorney Lawrence A. Peterson, Assistant City Attorney City of Yakima 424 East Yakima Avenue Suite 100 Yakima, Washington 98901 45. Each project coordinator shall be responsible for overseeing the implementation of this Decree. The Ecology project coordinator will be Ecology's designated representative at the Property. To the maximum extent possible, communications between Ecology and the City of Yakima or its Successors in Interest and Assigns and all documents, including reports, approvals, and other correspondence concerning the activities performed pursuant to the terms and conditions of this Decree, shall be directed through the project coordinators The project coordinators may designate, in writing, working -level staff contacts for all or portions of the implementation of the work plan incorporated in this Decree as Attachment E. The project coordinators may agree to minor modifications to the work to be performed without formal amendments to this Decree. Minor modifications will be documented in writing by Ecology. 46. Any party may change its respective project coordinator. Written notification shall be given to the other parties at least ten (10) calendar days prior to the change. PoHRPE PROSPECTIVE PURCHASER CONSENT DECREE RE: YAIKIMA GOODWILL INDUSTRIES SITE 12 PlZFSTON GATES & BETS 5000 Caiarabia Care 701?tbmem Saab. a',aanpon 98104 Tebpbooc: (206) 623.7560 OFFICE OF THE QTY ATTORNEY aIY OF YAKD 424 East Yakima Aeeaue.>S Ste. 0O Yawn,Wtshogtoo TekgCEe: (509) 5756030 3 4 5 6 7 8 9 10 11 12 3 14 15 16 17 18 19 20 21 22 23 24 25 26 VII. PERFORMANCE 47. All work performed pursuant to this Decree shall be under the direction and supervision, as necessary, of a professional engineer or hydrogeologist, or equivalent, with experience and expertise in hazardous waste site investigation and cleanup. Any construction work must be under the supervision of a professional engineer. The City of Yakima or its Successors in Interest and Assigns shall notify Ecology in writing as to the identity of such engineer(s) or hytirogeologist(s), or others and of any contractors and subcontractors to be used in carrying out the terms of this Decree, in advance of their involvement at the Property. VIII. CERTIFICATION OF THE CITY OF YAKIMA 48. The City of Yakima certifies that to the best of its knowledge and belief it has fully and accurately disclosed to Ecology the information currently in its possession or control that relates to the environmental conditions at and in the vicinity of the Property, or to the City of Yakima's right and title thereto. 49. If the information provided by the City of Yakima pursuant to this Section is not materially true and complete, the Covenant Not to Sue in Section XIV shall not be effective with respect to the City of Yakima, and Ecology reserves all rights it may have against the City of Yakima. IX. CERTIFICATION OF THE CITY OF YAKIMA AND SUCCESSORS AND ASSIGNS 50. The City of Yakima and its Successors in Interest and Assigns certify that they did not participate in the discharge of hazardous materials at the Property. 51. If the certification provided by the City of Yakima or Successors in Interest and Assigns pursuant to this Section is not true, the Covenant Not to Sue in Section XIV shall not be effective with respect to the City of Yakima or its Successors in Interest and Assigns, and Ecology reserves all rights it may have against the City of Yakima or Successors in Interest and Assigns. X. CONVEYANCE OF PROPERTY 52. The restrictions, obligations and rights set forth in this Decree shall hereafter run with the land and shall be binding upon any and all persons who acquire any interest in all or any lap/goodwill/count decree draft 3 8/1/94 9:19 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA GOODWILL INDUSTRIES SITE - 13 PRESTON GATES & E11SS 5000 Calcutta Cerner 701 Fifth Mame Scntk, Waatinpoa 4x104 Telepboae: (206) 6231510 OFFICE OTHE CITY TORNEY F YAKIMA 424 East Yakima maw, Ste. 100 Yakima. kpbooes�1(509) 575-6030 portion of the Property, provided that such persons become parties to this Decree and follow the , 2 amendment procedures set forth in Section XL Within twenty-one (21) calendar days of the effective 3 i date of this Decree, the City of Yakima shall record a memorandum of this Decree with the Auditor's 4 j Office, Yakima County, Washington. 5 53. The City of Yakima and its Successors in Interest and Assigns may freely 6 alienate their interest, or any portion thereof', in the Property, provided that at least sixty (60) calendar 7 days prior to the date of any sale of all or any portion of the Property or lease of all or a material 8 1 portion of the Property, the City of Yakima or its Successors in Interest and Assigns proposing to 9 ;; transfer such interest shall, by use of the form of Notice of Proposed Transfer (Attachment:F), notify 10 Ecology of the proposed transfer, and the names of the proposed Successors in Interest and Assigns 11 i that would acquire such interest. 12 54. The Covenant Not to Sue shall not be effective with respect to any Successors 13 i in Interest and Assigns who fail to execute the attached Agreement of Successors in Interest and 14 Assigns, or a substantially equivalent document, and follow the amendment procedure set forth in 15 Section XI. Failure of the City of Yakima or Successors in Interest and Assigns who acquire an 16 interest in the Property and who are subject to this Section's notification requirements to timely comply 17 with this Section's notification requirements shall subject such party to a stipulated penalty of $5,001, 18 i and does not in any way alter the rights and obligations of such party as set forth in this Decree, Ecology's 19including reservation of rights under Section XI of this Decree. I g 20 I XI. �_ � �1__ � ' • � � J_ v W :,R'I'TES TO DECD 21 55. This Decree may only be amended by a written stipulation among the parties to 22 1 this Decree that is thereafter entered and approved by order of the Court, except as provided in 23 Paragraph 57„ Such amendment shall become effective upon entry by the Court, or upon a later date 24 if such date is expressly stated in the parties' written stipulation or the Court so orders. 25 , 56. Amendments may cover any subject or be for any purpose agreed to by the 26 parties to this Decree, including for the purpose of making Successors in Interest and Assigns ne` lap/goodwill/copal dasee draft 3 811/94 9:19 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA GOODWILL INDUSTRIES SITE - 14 PRESTON GATES & 5000 Cambia Center 701 'ling Mme Seattle. Wasbagtoo 98104 Telepbone: (206) 6234580 OFFICE OF 71IE CITY ATTORNEY (STY OF YAKIMA. 424 East Yakima Avenge. Ste. 100 WashIngtoo 98901 Telepbooe:(509) 575-6030 3 4 5 6 7 8 9 10 11 12 1 14 15 16 17 18 19 20 21 22 23 24 25 16 parties to the Decree. If Ecology determines that the subject of an amendment requires public input, Ecology shall provide thirty (30) days public notice prior to seeking entry of the amendment by the Court, except that Ecology agrees that an amendment to make Successors in Interest and Assigns parties to this Decree shall not require public notice or comment 57. As part of the notice to Ecology required by Section X of this Decree, when the City of Yakima or Successors in Interest and Assigns contemplate conveyance of the Property, the proposed Successors in Interest and Assigns shall request that the Decree be amended as required by, and provided for in, this paragraph. The amendment to the Decree may be in the form of Attachment G, "Agreement of Successors in Interest and Assigns." Ecology may only withhold consent to an amendment malting Successors in Interest and Assigns party to this Decree if it provides written notification to the party or parties notifying Ecology of the proposed transfer in interest pursuant to Section X of this Decree. The written notification shall state that the City of Yakima or its Successors in Interest and Assigns is in violation or will be in violation of a material term of the Decree. Such written notification must be received within thirty (30) days of the date Ecology was notified of the proposed transfer. If Ecology does not provide such notification within thirty (30) days, the Court is authorized to enter the amendment without further action by Ecology. Provided, however, that failure of Ecology to comment within thirty (30) days does not compromise or affect any rights Ecology may have under this Decree, MTCA, or other applicable law. XII. DISPUTE RESOLUTION 58. In the event a dispute arises as to an approval, disapproval, proposed modification, or other decision or action by Ecology's project coordinator, the parties shall use the dispute resolution procedure set forth below. (1) Upon receipt of the Ecology project coordinator's decision, the City of Yakima or its Successors in Interest and Assigns have fourteen (14) days within which to notify Ecology's project coordinator of any objection to the decision. (2) The parties' project coordinators shall then confer in an effort to resolve Iap/goodwill/coasent decree draft 3 6/1/94 9:19 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA GOODWILL INDUSTRIES SITE - 15 PRESTON GATES & E11IS 5000 Colombia Cerner 701 Rfth Meow Seattle. Wuiiogtoo 96104 Tekpboae: (206) 6237560 OFY7CE OF THE CITY TORNEY aTY OF AKIMA 424 Em Yaloma Avenue. Ste. 100 Yakima. Wail:660t 59$901 Telepbate: 21 3 4 5' 6i 7! 8! 9 10 11 12 13 14 15, 16 17 18 19 20 21 22 23 24 25 26 the dispute. If the project coordinators cannot resolve the dispute within fourteen (14) days, Ecol( project coordinator shall issue a written decision. (3) The City of Yakima or its Successors in Interest and Assigns may then request Ecology management review of the decision. This request shall be submitted in writing to the Toxics Cleanup Program Manager within seven (7) days of receipt of Ecology's project coordinator's written decision. (4) Ecology's Toxics Cleanup Program Manager shall conduct a review of the dispute and shall issue a written decision regarding the dispute within thirty (30) days of the City of Yakima's or its Successors' in Interest and Assigns' request for review. The Toxics Cleanup Program Manager's decision shall be Ecology's final decision on the disputed matter.. 59. 1'f Ecology's final written decision is unacceptable to the City of Yakima or its Successors in Interest and Assigns, the City of Yakima or its Successors in Interest and Assigns have the right to submit the dispute to the Court for resolution. The parties agree that one judge should, retain jurisdiction over this case and shall, as necessary, resolve any dispute arising under this Decree. In the event the City of Yakima or its Successors in Interest and Assigns present an issue to the Court for review, the Court shall review the action or decision of Ecology under an arbitrary and capricious standard of review. 60. The parties agree to use the dispute resolution process in good faith and agree to expedite, to the extent possible, the dispute resolution process whenever it is used. When either party uses the dispute resolution in bad faith or for purposes of delay, the other party may seek sanctions. 61. The implementation of these dispute resolution procedures shall not provide a basis for delay of any activities required in this Decree, unless Ecology agrees in writing to a schedule extension or the Court so orders. XIII. C.I".r,-oruTrf'ION PRO'T'ECTION 62. With regard to claims for contribution against the City of Yakima or its Successors in Interest and Assigns for matters addressed in this Decree, Ecology agrees that the lap/goodwill/consent decree draft 3 1!1194 9:19 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA GOODWILL INDUSTRIES SITE 16 PRESTON GATES 4 ES.IS SOW Columbia Cesar 701 Fifth Meme Seattle. Washington 91101 Tc ephaoe: (206) 623-7580 OFFICE COF THE CM' T YAKAtAS?RNEY 424 East Yakima Meuse. Ste. 100 Yakima. Wa,hangmo 91901 Telephone: (509) 575-8230 3 4 5 6 7 8 9 10 11 12 3 14 15 16 17 18 19 20 21 22 23 24 25 26 of Yakima and its Successors in Interest and Assigns are entitled to protection from contribution actions or claims as is provided by MTCA, RCW 70.105D•040(4)(d), as currently enacted or as may be amended in the future, or as otherwise provided by law. XIV. COVENANT NOT TO SUE UNDER M'I'CA: REOPENERS 63. In consideration of the mutual promises and covenants herein, Ecology hereby covenants not to sue, not to execute judgment, nor to take any civil judicial, or administrative action, nor to establish any lien against the City of Yakima or its Successors in Interest and Assigns for claims pursuant to RCW 70.105D.040, as currently enacted or as may be amended in the future, or otherwise under state or federal law with respect to PCE and TPH contaminated soils and other hazardous substances encountered during the process of remediating PCE and TPH contaminated soils in concentrations requiring remedial action under MTCA standards which are remediated by the City of Yakima according to Ecology's requirements as of the date Ecology certifies completion as contemplated is Paragraph 84. This Covenant Not to Sue does not apply to Ecology's claims with respect to PCE and TPH contaminated soils and other hazardous substances encountered during the Process of remediating PCE and TPH contaminated soils in concentrations requiring remedial action under MTCA standards which are remediated by the City of Yakima according to Ecology's requirements under RCW 70.105D.040, as currently enacted or as may be amended in the future, arising from: (1) The City of Yakima's or Successor in Interest and Assign's ownership or operation or future acquisition of a property or business other than the Property. (2) Successors in Interest and Assigns' activities prior to the effective date of this Decree. (3) Any liability arising from the City of Yakima's or Successors in Interest and Assigns' activities as generator, transporter, broker, storage facility, user, distributor, blender, or vendor of hazardous substances, or storage, use, management or other responsibility for hazardous substances that result or have resulted in releases that would be sufficient to create liability under lap/goodwill/consent decree draft 3 1/1194 9:19 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA GOODWILL INDUSTRIES SITE - 17 PRESTON GAZES a ELLIS 3000 C taatia Center 701 pint Avenue Sable, Waabinpao 91104 Telepbooe: (206) 6237510 OFFICE OF THE TTORNEY CITY O AKDAA 4Yakima. 100 91901 Telepnooe: (509) 575.6030 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 RCW 70.105D.040(1)(c)-(e), as currently enacted or as may be amended in the future, except as provided in the work plan in Attachment E. 64. The City of Yakima has consented to the consideration set forth in this Decree and stipulated penalties set forth in Section X. 65. All of the City of Yakima's and its Successors in Interest and Assigns' rights, benefits, and obligations under this Decree and Covenant Not to Sue may be assigned, transferred, and shall run to any person that acquires an interest in the Property pursuant to the procedures set forth in Section X and Section XI of this Decree. Such rights, benefits, obligations and the Covenant Not to Sue shall not take effect until this Decree is amended pursuant to Section XL 66. The City of Yakima and Successors in Interest and Assigns agree not to assert any claims or causes of action against the State Toxics Control Account, any local toxics control account, or Ecology, for reimbursement of funds expended, or to seek any other costs, damages, or attorney's fees from Ecology, with respect to any remedial activities undertaken or costs incurred pursuant to this Decree, or arising from contamination on the property; provided, however, that nothing contained in this paragraph shall be construed as precluding the City of Yakima, as a municipal corporation, from applying for any available state grant funds. 67. Ecology retains all of its legal and equitable rights against all persons, except as otherwise provided in this Decree. The legal and equitable rights retained by Ecology include, but are not limited to, the right to compel any person, other than the City of Yakima or Successors in Interest and Assigns, to take remedial actions for known, documented or suspected on or off-site contamination, and to seek reimbursement against such persons for costs incurred by Ecology as a result of such contamination. 68. Reopeners: (1) Ecology reserves the right to seek modification of this Decree or to institute an action under § 70.105D.050 of MTCA, as currently enacted or as may be amended in the future, or take any other action authorized by law against any person, including the City of Yakir lap/goodwill/coaseat decree draft 3 $/1194 9:19 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAA GOODWILL INDUSTRIES Sl 1 h • 18 PRESTON GATES t 13115 5000 colada Center 701 Fifth Areca: Semis. Wastnia;toa 9810; Telepboae: (206) 623-7580 OFFICE OF THE CYTY ATrDRNEY CITY OF YAKDdA 424 East Yakima Mem. fie. 100 Yaf�ma. Waebio8,o0 911901 Tetepbae: (509) 575.4030 its Successors in Interest and Assigns, if contamination unknown, undocumented or unsuspected to exist on the Property at the time of entry of the Decree is discovered subsequent to entry of the Decree 3 ; and presents a previously unknown threat to human health or the environment. This reopener shall not 4 ; apply to unknown, undocumented or unsuspected contamination on the Property discovered 5 subsequent to entry of the Decree which is remediated during the Interim Action according to 6 i Ecology's requirements or where the City of Yakima or its Successors in Interest and Assigns agree to P 7implement the response plan developed by the City of Yakima or its Successors in Interests and � 8 Assigns and Ecology under Paragraph 43 at the time of discovery of such contamination. 9 (2) Ecology reserves the right to seek modification of this Decree or to 10 I institute an action under § 70.105D.050 of MTCA, as currently enacted or as may be amended in the 11 ? future, or take any other action authorized by law in the event the City of Yakima or its Successors in 12 Interest and Assigns fail to comply with the terms and conditions of this Decree, and after written 3 i notice of noncompliance fail to come into compliance. Ecology agrees that it will use good faith in 14 j determining whether to invoke this reopener. This reopener should ordinarily not be invoked, for 15 example, where the City of Yakima's or its Successors in Interest and Assigns' noncompliance with a 16 term or condition of this Decree results in an insignificant time delay in performance. 17 69. Prior to initiating any proceeding against the City of Yakima or Successors in 18 Interest and Assigns for liability with respect to the matters covered by the Covenant Not to Sue at 19 Paragraph 63 as a result of previously unknown, undocumented or unsuspected factors, or a breach of 20 this Decree, Ecology shall first provide the City of Yakima and Successors in Interest and Assigns an 21 opportunity to provide Ecology with evidence rebutting such claims, to which Ecology will respond in 22 j writing. In asserting this Decree as a defense in any proceeding by Ecology for costs or claims 23 � involving the Property, the City of Yakima and Successors in Interest and Assigns shall have the 24 burden of proving that such claim(s) were covered by this Decree or that such claim(s) were satisfied 25 performance of their obligations under this Decree. j b y the 26 I 70. Applicability: Notwithstanding any other provisions of this Decree, Ecology lap/goodwill/consent decree draft 3 8/1/94 9:19 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA GOODWILL INDUSTRIES SITE - 19 PRESTON GATES k EtL1S 5000 Columbia Center 701 R1 b Avenue Seattle. Wastinpoe 98101 Telephone: (206) 623-7580 OFnCE Y OF AKTHE CMA TTORNEY OTlA 424 Eau Tains Avenue. Se. 100 jekephone6too 1 :: (509) 57575-6030 2 3 4 5 6 7 8 9i: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 reserves the right to assert, and the Covenant Not to Sue set forth in Paragraph 63 shall not apply respect to, any claims or causes of action against the City of Yakima and Successors in Interest and Assigns, either administrative or judicial, after the effective date of this Decree, arising from any: (1) Release or threat of release of hazardous substances, pollutants or contaminants, other than the hazardous substances remediated under the terms of this Decree, resulting from the City of Yakima's or Successors in Interest and Assigns' ownership, operation, use, or development of the Property; (2) introduction of any hazardous substances, pollutant, or contaminant, not including the hazardous substances remediated under the terms of this Decree, to or at the Property in the future; (3) Interference with any remediation of the Property conducted or required by Ecology and any failure of the City of Yakima or Successors in Interest and Assigns to cooperate, as required by MTCA, with Ecology, its employees, agents, contractors or other authorized representatives conducting response activities under Ecology direction or oversight at the Property; (4) Future transportation and disposal of hazardous substances from the Property, except as provided under the work plan in Attachment E; (5) Exacerbation of on-site contamination, by the City of Yakima or Successors in Interest and Assigns; (6) Failure to exercise due care with respect to any hazardous substances, pollutants or contaminants at the Property; (7) Any and all criminal liability; (8) Claims based on failure of the City of Yakima or Successors in Interest and Assigns to meet a requirement of this Decree, except as provided in Paragraph 56 with respect to notification only; or (9) Liability for damages for injury to, destruction of, or loss of natural resources. lap/goodwill/consent demee draft 3 811/94 9:19 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAIA GOODWILL INDUSTRIES STt b - 20 • PRESTON GATES & ELLIS 5000 Cambia Center 701 Fifth Avenue Seattle, Washington 911104 Telephone: (206) 623-7580 OFFICE OFTim: CITY ATTORNEY CITY OF YAKD.4A 424 Easy Yakima Avenue. S. 100 Yakima. Wa,bingtoo 98901 Telephone: (509) 575-6030 3 4 5 6 7 8 9 10 11 12 3 14 15 16 17 18 19 20 21 22 23 24 25 26 XV. THE CITY OF YAKIMA RESERVATION OF RIGHTS 71. The City of Yakima and any Successors in Interest and Assigns reserve all rights and defenses which they may have and which are not otherwise addressed in this Decree. The execution of the "Agreement of Successors in Interest and Assigns" attached hereto as Attachment G or an amendment to this Decree by the City of Yakima or Successors in Interest and Assigns is not an admission of liability on their part. 72. Except as provided herein for the City of Yakima and Successors in Interest and Assigns, this Decree does not grant any rights or affect any liabilities of any person, firm or corporation or subdivision or division of state, federal, or local government. XVI. =CLAMOR 73. This Decree in no way constitutes a finding by Ecology as to the risks to human health or the environment that may be posed by contamination at the Property. XVII. RETENTION OF RECORDS 74. The City of Yakima and Successors in Interest and Assigns shall retain for a minimum of ten (10) years, all business records, reports, and contracts, except those documents previously provided to Ecology, as referenced in Paragraphs 25 through 30, that relate to the work performed by that party and Assigns pursuant to Section V above, or that relate to the Present Contamination and known, documented and suspectedoff-sitecontamination if and when such contamination migrates onto the Property. Thereafter, no such record shall be destroyed unless notice of the destruction is provided to Ecology by registered mad at least sixty (60) days prior to the destruction. All non -privileged archived records, until destroyed pursuant to this Paragraph, shall be made available for copying upon Ecology's written request. XVIII. SITE ACCESS 75. The City of Yakima and Successors in Interest and Assigns grant to Ecology, its employees, agents, contractors and authorized representatives, an irrevocable right to enter upon the Property, with reasonable notice and at any reasonable time for purposes of allowing Ecology to lap/goodwill/coaseet decree draft 3 */1194 9:19 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA GOODWILL INDUSTRIES SITE - 21 PRESTON GATES & E LIS 5000 Columbia Ceuta 701 Piftb Mew Sc.leWaattnkton 91104 Telepbooe: (206) 623-7580 OFFICE CTTTORNEY TY OF YAKIMA 424 Ea! Yakima Meese. Ste. 100 Yakima. Waam°ttO° 91901 Tekpnone: (509) 575-6030 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 monitor or enforce compliance with this Decree. This right of entry is in addition to any right Ecolr may have to enter onto the Property pursuant to specific statutory or regulatory authority. Consistent, with Ecology's responsibilities under state and federal law, Ecology, and any persons acting for it, shall use their best efforts to minimize any interference and use their best efforts not to unreasonably interfere with the operations of the City of Yakima or Successors in Interest and Assigns by any such entry. In the event Ecology enters the Property for reasons other than emergency response, Ecology agrees that it shall provide reasonable advance notice to the City of Yakima or its Successors in Interest and Assigns of any planned entry, as well as schedules and locations of activity on the Property. Ecology further agrees to accommodate reasonable requests that it modify its scheduled entry or activities at the Property. 76. Notwithstanding any provision of this Decree, Ecology retains all of its access authorities and access rights, including enforcement authorities related thereto, under M'I'CA and any other applicable state statute or regulations. 77„ Nothing in this Decree shall in any manner restrict or limit the nature or scop,.,. response actions which may be taken by Ecology in fulfilling its responsibilities under state or federal law. The City of Yakima recognizes that even with the use of best efforts on the part of Ecology, the implementation of response actions at the Property may interfere with the City of Yakima''s or Successors in Interest and Assigns' use or development of the site. The City of Yakima and Successors in Interest and Assigns agree to cooperate with Ecology in the implementation of response actions, provided that they do not waive any due process rights related thereto unless specifically waived pursuant to this Decree. XIX. OTHER APPLICABLE LAWS 78. The City of Yakima and Successors in Interest and Assigns agree that they will abide by all federal and state laws and regulations and that they will exercise due care with respect to any hazardous substances, pollutants, or contaminants at the Property unless a higher standard of care is required by law. lap/goodwill/consent decree draft 3 MAN 234 PM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA GOODWILL INDUSTRIES SITE - 22 PRESTON GATES t E LLIS 5000 Columbia Cerra 701 firth Avenue Seattle, Waabinston 98104 Telepbom: (206) 623-7580 OFFICE OF THE �AORiE1 CITY YAKIMA 424 East Ya1tma Areaae, Sae. 100 Yams, Washington 98901 Teltpbae: (509) 575-6C30 3 4 5 6 7 8 9 10 11 12 3 14 15 16 17 18 19 20 21 22 23 24 25 26 XX. DURATION OF DECREE AND RETENTION OF JURISDICTION 79. This Decree shall remain in effect and this Court shall retain junsdicnon over both the subject matter of this Decree and the parties for the duration of the performance of the terms and provisions of this Decree for the purpose of enabling any of the parties to apply to the Court, consistent with the dispute resolution process set forth in Section XII, and the amendment process set forth in Section XI, at any time for such further order, direction, and relief as may be necessary or appropriate to ensure that obligations of the parties have been satisfied. XXI PLBjjC NOTICE_AN12WJ' WAL OF CONSENT 80. This Decree has been the subject of public notice and comment under RCW 70.105D.040(4)(a). As a result of this process, Ecology has found that this Decree will lead to a more expeditious cleanup of hazardous substances at the Property, in compliance with applicable cleanup standards, and is in the public interest. 81. If the Court withdraws its consent, this Decree shall be null and void at the option of any party. In such an event, no party shall be bound by the requirements of this Decree. XXII. REMEDIAL ACTION COSTS 82. City of Yakima shall pay to Ecology costs incurred by Ecology pursuant to this order. These costs shall include work performed by Ecology or its contractors at the site under Chapter 70.105D RCW both prior to and subsequent to the issuance of this order for investigations, remedial actions, and order preparation, oversight and administration. Ecology costs shall include costs of direct activities and support costs of direct activities as defined in WAC 173-340-550(2). City of Yakima shall pay the required amount within ninety (90) days of receiving from Ecology an itemized statement of costs that includes a summary of costs incurred, an identification of involved staff, and the amount of time spent by involving staff members on the project. A general description of work performed will be provided upon request. Itemized statements shall be prepared quarterly. Failure to pay Ecology's costs within ninety (90) days of receipt of an itemized statement of costs will result in interest charges pursuant to WAC 173-340-550(4). tap/Eoodwill/conseat decree draft 3 811/94 9:4E AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA GOODWILL INDUSTRIES SITE - 23 PRESTON GATES t Etas 5000 Columbia Caner 701 Rita Meow Stank. Wasbinttoo 98104 Tekpaaar: (206) 623-7580 OFFICE OF OF AKIMA 424 Fast Yabma Maas. Ste. 100 Wasbingtoo Tekm pbe (508) 5759 , 6030 XXIII. EFFECTIVE .fes 1� 2' 83. The effective date of this Decree is the dlate on which title to the Property veslb 3 in the City of Yakima. 4 ; 84. The City of Yakima may request, and Ecology may not unreasonably refuse to 5 provide, certification by Ecology that all requirements of this consent decree pertaining to soil 6 remediation have been completed by the City of' Yakima. Similarly, the City of Yakima may request„ 7 and Ecology may not unreasonably refuse to provide, certification by Ecology that all requirements of 8 this consent decree pertaining to groundwater monitoring have been completed by the City of Yakima. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 So ordered this ® day of 1994. Judge Yakima County Superior Court The undersigned parties enter into this Prospective Purchaser Consent Decree on the date specified below. THE CITY OF YAKIMA By: By: Date. v_.�. By: Date;_._ )ap/goodwilUcoDient dexree drift 3 $/1194 9:53 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA GOODWILL INDUSTRIES sri h - 24 PRESTON GATES & 1Eu1S 5000 Columbia Caner 701 R1tb Awe Searle, Washington 9$104 Telephone: (206) 623-75$0 OFFXE OP THE ArroRsEY CITY OF YCITYAKIM 424 East Yalama Armee, Ste. 100 Yakima. Washington 9$901 Te bone: (509) 5756030 3 4 5 6 7 8 9 10 11 12 3 14 15 16 17 18 19 20 21 22 23 24 25 26 DEPARTMENT OF ECOLOGY By: Date; By: Date; By: Date - ATTORNEY GENERAL'S OFFICE By: Date; By: Date: By: Date: lap/goodwill/consent decree draft 3 8/1/94 9:53 AM PROSPECTIVE PURCHASER CONSENT DECREE RE: YAKIMA ( flODWILL INDUSTRIES SITE - 25 PRESTON GATES & ELLIS 5000 Columbia Cerra 701 ARL Meow f$tl Wasbiaroa Rt104 Tekpboae: (206) 6217560